23 February 2010

Community Land in East Timor: A Lesson from Paraguay

ETLJB 23/02/2010 1856hrs AEST SYDNEY - As the government of East Timor, with the support of the United States and Australian governments  as well as the World Bank, drafts its law on community lands in East Timor, community lands are already being alienated by the government to investors even though there are no clear legal protections for community lands or the local groups that occupy them and claim them as their ancestral legacy.

In the interests of traditional local communities in East Timor who have not been properly represented in the policy formulation or the drafting of the legislation, it is instructive to examine recent experiences of traditional communities in other countries.

As in East Timor, the government of Paraguay also grants rights and concessions over community lands without there being a protective legal framework that seeks to ensure the integrity of communal land rights as against both the state and outsiders. Nor is there any apparent policy from the government to shore up its traditional communities or act in their interests. This approach causes serious social problems to arise that have the potential to spiral into violence.

The initial draft of the law on the special regime for the determination of ownership of immovable property in East Timor made no mention whatever of the legal status of communal land rights or compensation for the appropriation of the land through the agency of the state to private capital. Instead, it left the matter entirely within the unrestrained discretionary powers of the executive (and, subject, ultimately, therefore, to the arbitrary decisions of the reigning political group and the economic elite).

A third draft of the law has made significant progress on the provisions pertaining to community lands in East Timor but there remain several problems which are yet to be addressed.

It is not too late for East Timor to act in accordance with international laws, conventions and declarations in relation to its traditional indigenous communities and ensure an appropriate regulatory framework.

The third draft may be read here on ETLJB.
From Global Voices Online - Paraguay: Indigenous Group Sprayed Aerially with Pesticides Thursday, November 12th, 2009 @ 23:02 UTC by Eduardo Avila - In eastern Paraguay, 217 members of the Ava Guaraní indigenous community recently came down with health symptoms that include nausea and headaches. It is believed that these individuals became sick as a result of intentional aerial spraying with pesticide, after they refused to vacate their ancestral lands.

Governmental officials confirm that parts of the indigenous group's land located in the Itakyry district in the Department of Alto Parana had been sprayed where no crops are present [es]. Many of the signs point to Brazilian soy growers as those responsible for the spraying, in part because the indigenous community's land is valuable for the crop and that they had been in a dispute with the Ava Guaraní over the ownership of approximately 3,000 hectares [es], according to the blog Interparaguay [es].

Jose Angel Lopez Barrios of Bienvenidos! [es] describes the isolated community where the incident took place.

Itakyry is one of the districts of the Department of Alto Parana, located 450 kilometers from the capital city of Asuncion. One arrives by unpaved roads, its heyday was during the yerba mate cultivation. This ended after 100 years, making way for the soy cultivation during recent times.

It is demand for soybeans, and the rising prices, which makes land suitable for this crop at such a high premium. Some of this land is located on ancestral lands of indigenous communities, such as the Guaraní. Blogger Carlos Rodríguez of Rescatar [es] does not think that the spraying incident against the indigenous group is an isolated incident, and calls the act “genocide”:

There was a time in Paraguay when the aboriginals were not considered human beings. They were hunted like animals and their offspring collected like trophies.

Some of their land was appropriated with bullets and blood, and as the indigenous did not go to the institutions in charge of of providing titles to the lands that always belonged to them, the white man did go to these institutions, it makes no sense that the rightful owners of these lands are now the “invaders.”

They continue to be treated like animals. It is only this way that one can understand how the soy producers can send fumigation planes to spray poison on top of them, which was proven by the Ministry of Health, which is now helping the indigenous poisoned by pesticides.

Lopez Barrios is also ashamed of the history of mistreatment of indigenous communities in Paraguay [es]. As a descendant of emigrants to the country, he writes that the incident “makes him feel like returning to Europe ….but really … prefers that the exploiters leave.”

To resent an indigenous group with more than 38 centuries in existence on their own and true territory, does not seem appropriate to me…. If we do not respect our elders, our days on earth will be shortened, and if greed is placed ahead of any other virtue, we will fall hopelessly…..

21 February 2010

Community land in East Timor - A New Tragedy of the Commons?

ETLJB 21 February 2010 SYDNEY 1626hrs AEST - ETLJB has previously published analyses pointing out certain fundamental deficiencies in draft land law’s provisions pertaining to indigenous land tenure systems in East Timor. To reiterate briefly, the draft would confer no juridical status on either customary land tenure systems or the individualised traditional rights that have emerged from those systems; it confers no juridical status on the customary managers of the land and makes no provision for just compensation for the diminution or extinction of customary land rights. Furthermore, the draft land law would impose a mere obligation on the government "to consult" with local communities when it is making decisions about the use or alienation of the land in their territory. The protection of community lands is left entirely in the hands of the executive.

As East Timor witnessed when it was part of Indonesia, customary peoples and their lands were the subject of exploitation, dispossession and destruction under a legal regime that paid no respect to the indigenous land systems. Similarly, in Australia, during the colonisation process, aboriginal lands were systematically appropriated without compensation and granted to the invading Europeans; leaving hundreds of indigenous communities in oblivion. In fact, the aboriginal people were the subject of a land-induced genocide of the most horrifying dimensions; leaving “a legacy of unutterable national shame”, as the High Court of Australia stated in the history-shattering case of Mabo v The State of Queensland (No 2) that overturned centuries of legal lies and restored the rightful juridical status of indigenous lands in that country. It is to such extremes that failures on land law and policy inexorably lead - to epic suffering, grief and loss; something of which the people of East Timor have had far more than their fair share.

One of the constitutive causes of the law has, at least in Western jurisprudence, been to define and protect property rights since they are essential to individual liberty, economic and political autonomy as well as social development. Land rights are a most quintessential vector in the entrenchment and maintenance of the relationships of power and organisation in all human communities.

When the law fails in this core function, it has failed the most central tenets of democracy and capitalism and injustices and conflicts arise which have the potential to destabilise the civil peace. East Timor policy-makers, administrators and researchers know all too well of the potentiality for violence, chaos and disorder when land issues are not properly managed.

Regrettably, the stage has already been set in East Timor for further problems that are rooted in the complexities of land law and policy; and in particular those relating to indigenous land tenure systems confronting intrusions from both domestic and foreign capital as well as the state.

In a recent article (Justice for the Poor Briefing Note November 2009 Volume 3 Issue 3 entitled Contracts, Land Tenure and Rural Development in Timor-Leste) Rod Nixon refers to some examples of the granting of rights and concessions over community lands in East Timor which have already taken place even though the draft land law is yet to be enacted and even while there is no other substantive legal regulation of community lands in that country.

Nixon recites 2005 survey data that shows that about 3% of rural land in Timor-Leste appears to have been alienated from customary tenure. Since then, of course, there have been several significant interventions by the state granting rights over community lands to private capital.

Nixon notes that other cases  include the 12 hectare East Petroleum site in Liquica and the 2008 Memorandum of Understanding between the GoTL (Government of East Timor) and GTLeste Biotech concerning a renewable 50 year lease for 100,000 hectares 'of unproductive land'. Another case is a lease issued by the GoTL to Timor Global in 2005 for 3000 hectares of coffee plantation at Fatubesi (Ermera district).

Nixon’s observations on this latter case are that “[a]lthough formally state land, Timor Global discovered that the lease provided an insufficient basis for the company to commence crop improvement and management activities. Before the company could begin work, it had to negotiate with community leaders and agree to provide benefits including employment opportunities and security arrangements. Timor Global has now commenced work on a 60 hectare section and employs around 80 members of the local community (including 30 said to have connections to the resistance movement)."

Timor Global is also active in Baucau district where the company has leased 1,500 hectares of community land and is introducing intensive cultivation methods on sites in three villages totalling up to 100 hectares.

Nixon tells us nothing of the compensation, if any, that had to be paid to the community (or whether that was distributed in a fair way to the community) in these processes. But past experience informs us that when a customary community is dealing with private capital which has the power and, if necessary, the force of the state standing behind it, one thing is certain: that the negotiation process is not adequate nor is the compensation just.

There have been other cases of problems being caused by an inappropriate approach to customary land tenure systems in East Timor. And one which highlights the dangers of conflict and violence threatening to break out from the mismanagement of the problem is the resumption of community lands for the Metinaro base of the East Timor Defence Forces. This appropriation occurred during the UNTAET period and was personally witnessed by the present writer. When the land was being surveyed by cadastral offices of the National Directorate of Land and Property (DNTP), local men appeared armed with weapons. The Defence Force itself had to provide security and oversee the process. Armed military personnel attended the handover of compensation which was some rice. Some rice for the land that this community had occupied since time immemorial. The suppression of resistance to the unjust taking of community lands works for a while but social discontent simmers away because of the injustice thereby rendered.

It is worth noting Nixon’s comment that “[w]hereas the GoTL, with USAID support, is addressing the critical area of property rights in urban and peri-urban areas through the Ita Nia Rai program, this initiative will not cover the vast amount of the country over which customary systems of authority predominate.”

Ultimately, this is a misrepresentation on both counts that needs to be corrected.

Firstly, given the criticisms of the draft land law that has been produced under the Ita Nia Rai program - and not just those in relation to the provisions on community land but the broader questions of whether possession or restitution is the ultimate goal of the draft as well as the appalling lack of adequate or meaningful public consultations on the draft, the question remains whether this draft is really going to “address the critical area of property rights” or whether it is something more insidious than it appears.

Secondly, it is wrong to state that the land law program “will not cover the vast amount of the country over which customary systems of authority predominate” because the draft land law clearly would impact on and would directly regulate (or purport to regulate) community land. It does this in the manner described at the beginning of this analysis and in the articles recited below, by ignoring the substantive legal and policy issues and subjecting community land to the pure will of the executive; without recourse to judicial review of government decisions that affect those lands. The draft authorises – poorly and improperly - the government to make decisions on the use and occupation of community lands (Article 26(2)), and in that decision-making process, the government needs only to consult with the community. No mention of the legal status of those rights. No mention of compensation.

Nixon appears to endorse this position by reciting other authorities that suggest “that state-managed negotiation frameworks for accessing land for development can play a role in both facilitating economic development and reducing the risk of land conflict.” But such a state-dominated system only works in a democratic rather than an autocratic way and without consequential disputes and conficts if the extant legal rights of the local communities over their lands are already enshrined in the law and there is a separation-of-powers inspired judicial review regime simultaneously in place. In East Timor, this is not yet the case. And it seems unlikely that it is intended to be the case.

Nixon’s obscurantism and obfuscations should not go unnoticed by those interested in the development of a rational, informed and experiential policy and legal regulatory framework for community land in East Timor. It is unfortunate that such an important debate is articulated in such a superficial way.

Warren L. Wright BA LLB
(former UNTAET Property Rights Adviser)

See further:
Special Regime for the Determination of Ownership of Immovable Property

Draft land law provisions on land rights for foreigners in East Timor will smother development 

2004 ETLJ 10 Some Observations on the Report on Research Findings and Policy Recommendations for a Legal Framework for Land Dispute Mediation Prepared by the Timor Leste Land Law Program 08 April 2004

East Timor Draft Land Law Public Consultations Commence